New Issue: Volume 110, Issue 2

Symposium 2020

By: February 28, 2020

Volume 110, Issue 1

Revisiting Voluntariness: Seeking Clarity in the Era of False Confessions

Volume 109, Issue 4

Volume 109, Issue 3

Volume 109, Issue 2

Volume 109, Issue 1

Volume 108, Issue 4: Bail Bond Reform

Family Separation Under the Trump Administration: Applying an International Criminal Law Framework

By: Reilly Frye | March 19, 2020

In April 2018, former Attorney General Jeff Sessions announced the “Zero Tolerance Policy.” The policy significantly increased criminal prosecution of immigrants entering the United States without inspection. Increased adult prosecution directly led to family separation. Parents were sent to federal jail and their children went to the Office of Refugee Resettlement. Neither institution communicated with the other, and the United States government lost track of parents and children. The government separated nearly 3,000 children from their parents, going as far as deporting over 400 parents to their countries of origin while their children remained in the United States. Many of these separated families were seeking asylum.

Domestic litigation is ongoing regarding the family separation policy. Yet international litigation could also be an avenue of justice for these parents and their children. Recently, in a September 6, 2018 decision regarding the deportation of the Rohingya people from Myanmar to Bangladesh, the International Criminal Court (ICC) found that the crime against humanity of deportation has a start point and an end point. If just one of these points is within a State Party of the Rome Statute, then the ICC can exercise jurisdiction over the entire crime—even if the crime involves a country that is not a signatory of the Rome Statute like the United States.

In the case of the U.S. government’s family separation policy, the starting point is the United States, and the end point is the Central American countries that are State Parties to the ICC, like Mexico, Honduras, El Salvador, and Guatemala. Because these Central American countries are members of the ICC, the crime against humanity of deportation can theoretically invoke ICC jurisdiction over U.S. officials. In short, the ICC could prosecute U.S. government officials for the crime against humanity of deportation that occurred during the Trump Administration’s family separation policy, despite the U.S. not being a signatory of the Rome Statute.

Since the U.S. is not a member of the ICC, there would be no obligation for the government to surrender any official indicted by the Court. Indeed, considering former National Security Adviser John Bolton’s recent attack against the ICC regarding the Situation in Afghanistan, it is likely that the U.S. government would do everything possible to delegitimize or ignore any ICC decision concerning the Trump Administration. U.S. government retaliation could come in the form of sanctions, an increase in the number of bilateral treaties, or lack of cooperation. More likely than the government exercising complementarity—arguably the simplest way to avoid an ICC prosecution—the Trump Administration could also use its status as a permanent member of the United Nations Security Council to defer the prosecutor’s investigation.

Nonetheless, despite the barriers to enforcement, should the ICC prosecute top U.S. officials for the Zero Tolerance Policy, international criminal law still has a place in denouncing the family separation that occurred in summer 2018. The international community’s perception of a country’s stance on human rights has wide-reaching impacts, even for a global power such as the U.S. The ICC’s reach has grown exponentially due to its recent jurisdictional decision regarding the Rohingya. Any decision regarding ICC prosecution of U.S. officials for the Trump Administration’s family separation policy would have wide-reaching impacts for the world.

A Material Change to Brady: Rethinking Brady v. Maryland, Materiality, and Criminal Discovery

By: Riley E. Clafton | March 19, 2020

How we think about the trial process, and the assumptions and beliefs we bring to bear on that process, shape how litigation is structured. This Comment demonstrates why materiality, and the theory of juridical proof informing that standard of materiality, must be redefined for Brady v. Maryland doctrine and criminal process. First, the Comment delineates the theory of explanationism—the revolutionary paradigm shift unfolding in the theory of legal proof. Explanationism conceptualizes juridical proof as a process in which the factfinder weighs the competing explanations offered by the parties against the evidence and the applicable burden of proof. Applying explanationism to criminal process demonstrates that explanationism not only is the more accurate account of juridical proof, but also better frames the criminal discovery process and ensures due process of law. The next section applies explanationism to Brady doctrine to show that the Supreme Court has tip-toed towards a more explanatory view of Brady v. Maryland but also faltered and lapsed back into a probabilistic inquiry at critical junctures. As a result, the efficacy of Brady is diminished where it is undermined by probabilistic theory or language. As a result, the doctrine should embrace explanationism more wholly. Under explanationism, materiality is determined by assessing whether the suppressed evidence could have been used by the defendant to influence the factfinder when presenting her case. To illustrate this argument and its importance in real-world outcomes, this Comment takes state and federal courts of Texas as a case study. In Texas, probabilistic definitions of materiality have thwarted both Brady doctrine and legislative criminal discovery reform. The case study demonstrates the material consequences for not rethinking materiality. Changing our understanding of materiality is critical to protecting the right to due process of law in our courthouses and state legislatures.

The Prosecutor as a Final Safeguard Against False Convictions: How Prosecutors Assist with Exoneration

By: Elizabeth Webster | March 19, 2020

Prosecutors have helped secure an unprecedented number of recent exonerations.  This development, combined with the rapid emergence of district attorney-initiated conviction integrity units (CIUs) raises several questions.  How do prosecutors’ offices review postconviction innocence claims?  How do they make decisions about the merits of those claims? How do CIU processes differ from non-CIU processes?  This study examines the circumstances surrounding prosecutor-assisted exoneration cases through semi-structured interviews with 20 prosecutors and 19 defense attorneys.  It draws from a sample of both CIU and non-CIU prosecutors, thereby enabling comparisons.  Respondents were asked about their experiences and decision-making structures in specific, post-2005 exoneration cases as well as their impressions of postconviction practices more broadly.  Their responses revealed the salience of office hierarchies and appellate principles for prosecutors’ postconviction discretion.  Unlike earlier stages—such as charging and plea bargaining—few decisions appear to be delegated to the line prosecutor in the postconviction stage.  Therefore, I incorporate organizational accident theory to understand key decisions, such as which prosecutor should be tasked with reviewing innocence claims, how to screen claims, and how to decide the outcome of an innocence claim.  I find that prosecutors work within a system that emphasizes procedural errors over factual ones and that allows for a narrow and belated discovery of false convictions. Thus, prosecutors’ postconviction efforts do not appear likely to create a new pathway to exoneration for pro se defendants, or to identify false convictions that have not already been discovered by trusted defense attorneys, innocence organizations, and/or journalists.  Although most prosecutors described processes that could reliably facilitate unbiased case review and reinvestigation, these processes were reserved for only the most extraordinary of innocence claims.  The significance of this research for policy (in the crafting of legislation and court rules) and practice (in the processing of innocence claims through prosecutors’ offices) is discussed.